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Obesity may be a disability following court ruling

The UK’s obesity problem has been described as a ticking time bomb and it is estimated that half the population will be obese by 2050 at a cost of £50 billion a year. But that’s not the only implication of obesity. The European Court of Justice recently ruled that obesity can constitute a “disability” in certain circumstances in a decision that has potentially significant implications for employers.

Background

The case (Karsten Kaltoft v Kommunernes Landsforening acting on behalf of the Municipality of Billund) concerned Mr Kaltoft who had worked as a childminder in Denmark for 15 years. He was dismissed in November 2010. Throughout his employment, Mr Kaltoft weighed around 25 stone and had a Body Mass Index (BMI) of 54. According to the World Health Organisation, BMI in excess of 40 is categorised as class 3 obesity (the most severe category) described as extreme or morbid obesity.

The reason given for Mr Kaltoft’s dismissal was the decline in the number of children to look after. Obesity was not mentioned in the dismissal letter and Mr Kaltoft was not told why he, out of several childminders employed by the Municipality, was selected for dismissal. Following his dismissal Mr Kaltoft brought proceedings alleging that he had been unlawfully discriminated against because of his obesity.

Agreeing with an earlier Opinion of the Advocate General, the ECJ held the Equal Treatment Framework Directive for combating discrimination in employment (which underlies the Equality Act 2010) extends to “disability” and this covers limitations which result from long-term physical, mental or psychological impairments which may hinder an individual’s full and effective participation in professional life compared to other workers without that condition. Obesity could therefore constitute a disability.

Mr Kaltoft’s case will now go back to the Danish court for it to assess whether or not his obesity hindered his full and effective participation in professional life on an equal basis with other workers, in which case, he has a disability. Interestingly, Mr Kaltoft had worked for 15 years as a childminder and a key question will be whether or not his obesity did in fact hinder his work at all.

Implications of the decision

So what does this decision mean for employers? In the UK, the Equality Act 2010 provides that a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day- to- day activities. It is important to note that obesity by itself will not mean that a person has a disability and that obese people may not suffer any health problems at all. What will be relevant is the extent of the obesity/BMI and the impact on normal day- to- day activities and the nature of the work undertaken. This will need to be judged on a case- by- case basis.

The significance for employers is that if an employee satisfies the definition of disability, then the rights and obligations set out in the Equality Act will apply, including, the duty to make reasonable adjustments. In the context of obesity and disability this could mean adjusting workstations or duties or providing car parking spaces close to the office, for instance.

In fact the UK courts have already considered the issue of obesity and disability in the case of Walker v Ceta Information Network Computing Limited. Mr Walker weighed around 21 stone and suffered from a range of symptoms including asthma, knee problems, high blood pressure and diabetes. These symptoms caused significant difficulties in Mr Walker’s day- to- day activities and in 2013, the EAT held that the combination of various physical and mental conditions and “functional overlay” compounded by obesity constituted a disability.

The key to dealing appropriately with obese employees who may be disabled is good communication with the employee (for example to assess the implications of their obesity for the workplace) and taking medical advice in appropriate cases. There is also a range of guidance available about disability and the practicalities of making adjustments, for example from the Employment team here or through publications issued by the Equality and Human Rights Commission.

About the Author

Matthew heads the firm's Education Sector and also has extensive experience of both contentious and non-contentious employment work, in particular Employment Tribunal cases.

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